Through an unfortunate situation, you are now left with a house and a lot of decisions to make. According to a March 2019 report from the Social Security Administration, the average credit score for women is 684 and the average life expectancy of a sixty-five-year-old woman is 86.7 years. You have to plan strategically for your future if you are either newly widowed or newly divorced.

Newly Widowed Women

Although the home may have a lot of memories and nostalgia, it may not be financially sound to keep it. In a lot of cases, newly widowed women are living in a house too big, too expensive to pay off, and too large to maintain. Downsizing to a smaller home has benefits of lower property taxes, less expensive utility bills, and less work to upkeep the home. Downsizing can also prove therapeutic, in that it provides a fresh start.

Newly Divorced Women

Divorced women have hurdles of their own when it comes to buying a home post-divorce. In the 90’s, divorced women would run into issues with loan approval. Income from child support was not considered consistent income and often hard to prove with documentation. Additionally, stay-at-home moms often had to return to work post-divorce. Often times, divorced stay-at-home moms were unable to find comparable income to the household income prior to the divorce. Today, lending organizations often take a divorce into account when looking at loan applicants. Additionally, loan entities consider whether or not a woman had a solid credit score before her divorce.

Both newly widowed and newly divorced women should take time to make sure they are making the best decision with their homes, and speak with an attorney-as they do not benefit from either decision, and can offer candid advice.

Speak with an experienced Smith Strong attorney about your options in your specific situation. Contact Smith Strong, PLC today for more information. Please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg). ]]>https://www.smithstrong.com/library/whether-or-not-to-keep-the-house-after-divorce-or-death.cfmwww.smithstrong.com-128091Sat, 14 Sep 2019 06:37:00 ESTIn Virginia there is no difference in legal standard between domestic relocation within the United States and international relocation of children. Procedurally, the burden of proof is on the parent planning to move a child away from the other parent.

Case law, Virginia statute Va. Code Ann. §20-124.3, and the best interest of the child govern custody decisions. Trial courts do not have the ability to prevent a parent from moving but may prevent the parent from relocating with a minor child.

There are three requirements to prevail with the relocation of a minor child over the objection from the other parent:

The Court must find a material change in circumstance from the original custody order.

The Court must find that the relocation would be in the child’s best interest

The Court must find that the relocation would not cause a substantial burden on the relationship between the child and the parent not moving.

Although the Court considers many factors, these are a few of the most important:

1. Stability of the Moving Parent

Stability in a new environment for a child is very important. It is important that the moving parent could prove that despite the new location that the child would be in an environment of stability, love, and concern for him or her.

2. Familiarity with New Location

The Court considers whether the child has a connection to the new location, or if the child has visited the new location previously.

3. Moving Parent-Child Relationship and Financial Stability

The Court takes into consideration which parent is the primary caregivers and the effect that the move would have on that relationship and the child. The Court wants to ensure that the child will be properly taken care of in the new location.

4. Proposed Maintenance of Non-moving Parent and Child Relationship

The Court also considers whether the moving parent would be supportive of sustaining the relationship of the child and the non-moving parent.

5. Reason for Relocation

The Court looks at the reason for relocation to ensure that the move is not for illegitimate reasons. The Court would not approve of a move to spite the non-moving parent.

If you are consider relocating orin need of a lawyer for a custody proceeding, please contact Smith Strong PLC to speak with an experienced associate. Call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg).

]]>https://www.smithstrong.com/library/relocation-considerations-in-child-custody-matters.cfmwww.smithstrong.com-128090Fri, 13 Sep 2019 06:24:00 ESTTaking care of a loved one with diminished or decreased capacity is a valiant but demanding task. At times, it can be very difficult to remain impartial while making decisions for or with your loved one. Acting in their best interest is the most important objective of your loved one's care. In some cases, it may be in you and your loved one's best interest to hire an attorney to represent your loved one. Attorneys have a professional responsibility to act in the best interest of clients with diminished or decreased capacity.

Representing Clients Who Lack Capacity

Attorneys must follow the Modern Rules for Professional Responsibility when representing a client. Within the rules, there are specific sections that dictate that an attorney must take reasonably necessary protective action to prevent clients with diminished or decreased capacity from financially or physically harming themselves.

Attorneys also use their best judgement to determine when a client lacks capacity. As a loved one, it may be difficult at times to discern whether or not your loved one’s decision is due to diminished or decreased capacity, or if he or she is making a decision that you do not agree with. This is an instance when a neutral third party can intervene while working in the best interest of your loved one.

Speak with an experienced Smith Strong attorney about your options of representation of a loved one with diminished or decreased capacity. Contact Smith Strong, PLC today for more information. Please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg).

Dementia is the decline in mental ability that can become severe enough to effect daily tasks. Oftentimes, dementia patients are admitted to nursing homes which can become very expensive. Although there is no cure for dementia there are new innovative programs that assist with dementia side effects, while keeping your loved one out of a nursing home. Note our estate planning workshop outlines how to potentially protect your assets from rapid spend-down from long-term care expenses.

A Pet

At first this sounds like a huge responsibility. There has been evidence that the companionship, physical activity, and socialization have helped dementia patients. However; a pet does come with a lot of responsibility and risk of physical injury. An alternative would be a trained therapy animal, but they can be as expensive, and there is often a waitlist for these animals. An innovative alternative has been robotic pets that can cost as little as $100 and provide similar companionship and socialization to dementia patients.

Dementia Socialization Clubs

Organizations for dementia patients have grown in popularity for their socialization and light physical activity of patients, while also covered by Medicare, Medicaid, or other health insurances. Programs such as the Program for All-inclusive Care for the Elderly (PACE) have been shown to improve patient function and decrease health care dementia related costs.

Counseling for Caregivers

There has also been an increase of programs where medical professional conduct at-home checks and provide basic care training for a caregiver of the patient. This is an alternative that could allow a caregiver to feel comfortable and adequately trained to care for their loved one rather than resorting to admitting the loved one into a nursing home.

Let us help educate you on your best options—you deserve the best advice after giving your loved one the best care all of these years.

To sign up for our workshop or schedule your first meeting with attorney Van Smith and his team please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg).

Source: The Wall Street Journal: New Hopes for Dementia Care, April 2019

]]>https://www.smithstrong.com/library/improving-dementia-care.cfmwww.smithstrong.com-128089Thu, 12 Sep 2019 10:10:00 ESTBefore you move out or file a custody action, please read Attorney Van Smith's free book on the divorce and custody process in Virginia.

Rules Governing Presumptions

Depending on your jurisdiction, a court will use one of two rules to govern the effect of a presumption, the “Thayer” theory or “Morgan” theory. The Thayer theory declares that if the party who the presumption is asserted against produces evidence to dispute the presumption then the presumption disappears and does not impact the trial. The party who asserted the presumption retains the burden of factual persuasion throughout the process. When the Morgan theory is applied the burden of factual persuasion and the burden of production switch to the party that the presumption is asserted against. Both theories have appeared in Virginia courts, but recent cases show Virginia currently applies the Thayer theory when the presumption of undue influence is at issue.

How Presumptions Effect a Case

To establish a presumption of undue influence and survive a demurrer in a will contest, the party contesting the will must sufficiently allege: (1) the testator was elderly when the will was written; (2) the beneficiary stood in a relationship of confidence and dependence; and (3) there was at least a previous indication that the testator wanted to divide his estate in a manner contrary to the current will. If there is evidence to prove these elements at trial then it would survive a motion to strike. To make undue influence a jury issue at trial then the evidence must point to the fact that the person executing the will was deprived of his volition to dispose of his property as he wished.

If the presumption is established the burden of production shifts to the party supporting the will. If the party is able to produce countering evidence the presumption disappears and the will contestant keeps the burden of producing clear and convincing evidence at trial. If no countering evidence is presented then the presumption will result in a favorable verdict for the contesting party.

Example Case

The case of Parson v. Miller provides an example of the material explained above. The decedent’s daughter (“Daughter”) sued the decedent’s niece (“Niece”) because the decedent executed a will a week before his death and left everything to Niece. Daughter was able to establish that the decedent was elderly when the will was made, he had a dependent relationship with Niece, and that the decedent had previously expressed an intention for Daughter to get his estate. To rebut the presumption Niece provided witnesses to show she had not tried to influence the decedent and the decedent was in a good state of mind until he died. This combined with Daughter’s unconvincing testimony led the Supreme Court of Virginia to say that there was no evidence to support a claim of undue influence and the jury should never have been instructed on it. Therefore, the motion to strike the evidence by Niece should have been granted.

The Smith Strong Difference

The versatile lawyers at Smith Strong are capable of contesting a will, defending you against an undue influence claim, or advocating on your behalf for any estate or family law needs. If you do find yourself in need of our services please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee – Law Clerk

]]>https://www.smithstrong.com/library/determination-of-undue-influence-in-a-will-contest.cfmwww.smithstrong.com-126346Sat, 13 Apr 2019 06:04:00 EST The failure to name the correct defendants of an estate can doom your claim, the case of Ray v. Ready is an example of that.

Facts

Mr. Ready died and his will excluded his wife, Mrs. Ray, as a beneficiary so she filed suit. However, this suit only named Mr. Ready’s estate as the defendant, not his administrator, Katherine Ready. Ready’s counsel discovered the error and contacted Ray’s counsel about an amendment, but nothing was done. Then, six days before the hearing the statute of limitations on Ray’s claim expired. At trial, Ready’s attorney moved to have the action dismissed for failure to name the correct parties and pointed out the fact the pleadings could not be amended due to the statute of limitations expiring. In response, Ray argued that Katherine’s being named in the summons and answering the complaint on the estate’s behalf were enough to add her as a party. The court disagreed with Ray and nullified the action.

The Appeal

The appeals court affirmed the trial court decision. The appeals court cited the controlling law which said, “the party filing a civil action has the fundamental obligation to express the nature of the claim being asserted, and the identity of the party against whom it is asserted.” James v. Peyton, 277 Va. 443 (2009). The court also stated that “actions must be between and by living parties either in an individual or representative capacity.” The court then cited Virginia Code § 8.01-6.3 which controls when there are errors in naming fiduciaries in lawsuits. Ray did not comply with the code section because she did not name Katherine as a defendant or refer to her in the body of the complaint. Therefore, a new action could not be filed, as the statute of limitations had run.

Importance of an Excellent Lawyer

The skilled lawyers at Smith Strong will carefully draft every pleading so as to make sure your estate litigation will not be hampered by a technicality. If you are in need of a lawyer for estate litigation, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee – Law Clerk

]]>https://www.smithstrong.com/library/estate-litigation-and-naming-of-parties.cfmwww.smithstrong.com-126345Thu, 11 Apr 2019 06:35:00 ESTThe case of In re A.V.T.A. demonstrates a circumstance where a child’s last name may be changed.

Facts

The child (“Child”) whose name was at issue in this case had a hyphenated combination of the natural mother’s (“Mother”) maiden name and the natural father’s (“Father”) surname. However, Mother remarried and took the last name of her husband (“Step-father”), and, naturally, so did all of the kids Mother and Step-father had together. Child felt distressed about having a different last name and Mother wanted to take her maiden name off of the hyphenation in Child’s name so that Child’s new last name would be a hyphenated version of Father and Step Father’s surnames. Father objected because he felt it would damage his relationship with Child.

Opinion

In order to change a child’s name, it must be in the child’s best interest and also not diminish any significant ties between the child and the parent whose last name the child carries. Each name change case is determined on a very fact-specific basis. In this case all parents cared for the child and made an effort to work together, so the main issue was the child’s confusion about her last name. The court took into consideration Child’s distress, Father’s concerns, and the Mother’s behavior of sometimes leaving Father’s surname off of important papers and came to the decision that there was not enough evidence to prove that Mother was trying to push Father out of Child’s life. The court then decided that a name change would be in the Child’s best interest and granted the petition to change Child’s name.

Smith Strong is Here to Help

If you are in need of a lawyer for custody proceedings, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee – Law Clerk

]]>https://www.smithstrong.com/library/virginia-legal-case-involving-a-name-change.cfmwww.smithstrong.com-126347Wed, 10 Apr 2019 12:19:00 EST The case of Eberhardt v. Eberhardt teaches the lesson that before putting any wording in a contract, you and your attorney must be very sure that the words are truly what you intend.

Facts

The parties had an agreement regarding division of assets and spousal support that stated “[t]he parties by counsel have reached an agreement with regard to all issues in this matter.” The agreement did not address any omitted or non-disclosed assets. The wife then found out about an IRA account and two escrow refund checks that she had not received a piece of and wanted a portion of them. The husband claimed she did not deserve any portion of the IRA account or refund checks and also requested a return of $20,000 of the $65,000 he had paid in attorney’s fees. The circuit court divided the IRA and refund checks, but refused to credit the husband $20,000.

Decision

The appeal court reversed the circuit court’s decision, in part, by agreeing with the husband that the IRA was not included in the party’s earlier agreement. The court focused on the line that the parties had resolved “all issues in this matter.” The parties wanted the agreement to be final and comprehensive in regard to equitable distribution. The fact that the agreement did not distribute all marital property did not give the circuit court the power to amend the agreement and distribute property the parties did not address. The appeal court then affirmed the circuit court’s decision, in part, when it decided that the previous agreement addressed the escrow refund checks and that the husband does not deserve a credit for the attorney’s fees he paid prior to the agreement. Therefore, the escrow refund checks were equally divided with the wife. The $20,000 payment could have also been addressed in the agreement, but since it wasn’t the court could not award it to the husband.

Importance of an Excellent Lawyer

The skilled lawyers at Smith Strong will carefully draft every contract so as to make sure your divorce and subsequent division of assets will go as smoothly as possible. If you are in need of a lawyer for a divorce proceeding, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee – Law Clerk

]]>https://www.smithstrong.com/library/wording-in-property-division-agreements.cfmwww.smithstrong.com-126342Tue, 09 Apr 2019 06:15:00 EST CooperVision, a contact lens manufacturer, commissioned a survey of 2,000 people on the amount of time they spent on screens. The results may astound you.

Overall Time

The study found that 42% of the time American adults are awake our eyes are looking at screens. Assuming the average person sleeps eight hours a night, that means that the average adult spends six hours and 43 minutes looking at screens daily. Looking at that number differently, that is 7,956 days or 21.8 years of our lifetimes.

The Number is Still Increasing

79% of those surveyed said their screen time has been increasing over time, which points to the problem only getting worse. This is unsurprising with the growing number of jobs that require employees to use their computers and phones.

Age

Age played a significant factor into how much time people spent looking at screens, with millennials having the highest screen times. About 3/5 of the millennials surveyed admitted feeling “anxious or irritated” if they were not able to check their phones, while just 1/5 baby boomers felt that way.

Negative Effects

Looking at screens causes eye fatigue and after about four hours most people experience discomfort and have to take a break. 73% of the people surveyed said screen time makes them feel lethargic and then 64% said they felt happier after getting a significant break from a screen. In addition to these factors, screen time will generally point to inactive periods, so not only are people tiring their eyes, but also deteriorating their muscular and cardiovascular health.

Take Breaks

As mentioned previously, many jobs require people to look at screens to be productive, however it is important to take breaks. Breaks that involve getting up and moving are even better. So now it is time for me to end this article and let you get your eyes off the screen.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/data-on-time-in-front-of-screens.cfmwww.smithstrong.com-126341Mon, 08 Apr 2019 11:04:00 ESTThe case of Santos v. Bedford County Dep’t of Social Services provides an important example of how important it is to stay on top of court proceedings, especially in a custody case.

Background

The Juvenile and Domestic Relations (“JDR”) court took away parental rights from a mother (“Mother”) after determining her unfit. In response, Mother appealed to the circuit court to retain her rights over K.C., her child. The case date was set and when the day came Mother was nowhere to be found. Mother’s lawyer motioned for a continuance, but it was denied and orders were entered approving the Social Services’ goal of adoption for K.C., Mother appealed.

Court’s Opinion

Mother appealed the circuit court’s decision claiming that the denial of the continuance was improper because the fact that she could not participate in the hearing prejudiced her chances of winning. The circuit court found that Mother had actual knowledge and notice of the hearing because notices were mailed to the guardian ad litem and Mother’s counsel. On top of that, Social Services had tried to serve the notice on Mother, but she had moved and not updated her address. Testimony at trial from a social worker claiming she had informed Mother of the date was also found to be credible. Therefore, the circuit court’s decision was affirmed.

Importance of an Excellent Lawyer

A lawyer’s purpose is more than just making your argument for you, they are also there to help you through the process of litigation. The lawyers at Smith Strong meet with you for during important pre-trial stages and make sure that you are up-to-date on your case. If you are in need of a lawyer for a custody proceeding, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/determination-of-parental-rights-in-virginia.cfmwww.smithstrong.com-126213Mon, 01 Apr 2019 06:00:00 EST As businesses become more global, individual travel--for work and pleasure--has become more prevalent. This has inevitably led to the increased co-mingling of people from different countries. Sometimes this co-mingling can lead to marriages and/or children. If children are conceived and the parents no longer want to live in the same country, but both want custody, complex legal issues can arise. These issues generally center around which country has jurisdiction and how that jurisdiction defines custody.

The Hague Convention

The Hague Convention on the Civil Aspects of Child Abduction is a multilateral treaty ratified by 98 countries and it provides a protocol for the return of a child who was taken by a parent to another country to live without the consent of the other parent. The United States is one of the 98 countries who have signed the treaty.

Habitual Residence

A very important factor in The Hague Convention is the child’s habitual residence. The child’s habitual residence is where the child had grown up for the previous few years. For countries who signed The Hague Convention, once a left-behind parent makes a claim for the child then the child must be returned to the country of their habitual residence. The law of that state or country then determines custody. An example of this procedure in action was in the case of Redmond v. Redmond, in which an unmarried couple had a child (their names being the same is a coincidence) and when the relationship fell apart the mother took the child to Illinois. The father wanted the child back, but the Seventh Circuit did not force the mother to return the child because in Ireland a non-married father does not have rights to the child unless he makes a claim for it, so The Hague Convention did not apply. By the time the father was able to complete a petition for custody rights the United States had become the child’s habitual residence and the child was allowed to stay in the United States.

Unmarried Parents

Unmarried parents, especially fathers, should review the definition of custody in their jurisdiction and also future jurisdictions they could reside in. Once this research is done the unmarried parent will know whether he or she needs to petition for custody immediately.

How a Lawyer Can Help

A lawyer who specializes in custody proceedings is extremely valuable in any custody battle, but especially an international one. It may take quick action to keep your child from being ripped away from you. If you are in need of a lawyer for a custody proceeding, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/international-child-custody-situations.cfmwww.smithstrong.com-126211Sun, 31 Mar 2019 06:21:00 EST As family lawyers, we are frequently asked to determine the valuation of a company. The value of companies, especially early-stage companies can become a large part of divorce proceedings for founders and large shareholders of companies. In some cases, the stock may even represent the most valuable financial asset in the marriage. Therefore, the family lawyer you choose must have knowledge on how to handle this process and know when an appraiser is needed.

Stages of a Company

The American Institute of Certified Public Accountants (“AICPA”) released a guide in 2013 that breaks down the typical stages of a business. The guide sets out six stages, which are set forth below:

1. The business has no revenue and only a few employees.

2. Still no product revenue, but there is not a substantial expense history.

3. Product development has made significant strides, important milestones have been hit, and the product is almost ready to be sold.

4. Sales have been made, but there have not been profits.

5. Product sales have led to profits.

6. The business has stayed profitable for a significant amount of time.

Those companies in stage six are generally much easier to value than those companies in stage one.

Expert Witness

Typically, an attorney will not be equipped to professionally analyze the stage of the company and then value it, nor would he or she be unbiased. Therefore, at this stage, it is important for your attorney to hire the right expert witness. The witness should be trained and familiar with popular valuation methods.

Virginia Standard

Once the expert has the necessary information, he or she evaluates based on Virginia’s standard for divorce litigation, which is the intrinsic value of the company. There is no specific definition for intrinsic value, but what it is usually not is just the basic value of the company if it was put on the market. Evaluators must pick the best valuation method for the situation and apply it.

Valuation Methods

Three popular evaluation methods are excess earnings approach, the asset valuation approach, and the market value approach. The best evaluators take into account all factors that could increase or decrease the value of a business. In an early-stage company there will not be much of a financial history, so evaluators in this area look at more creative measures of value like: the company’s business plan, financial forecasts, market studies, and unknowns.

Capital Structure Values

The capital structure value must also be analyzed for a complete valuation. The three main ways to calculate capital structure value are equity value, enterprise value and invested capital value. It is common for different experts to use different methods to calculate capital structure values, which can cause discrepancies in the overall valuations. These discrepancies can cause issues when the sides come to negotiate and nobody understands why they are so different, making it hard to come to a deal. Therefore, having an attorney and expert that understand how the different capital structure values can be obtained will lead to more successful negotiations.

Using the Right Lawyer

If you are in need of a lawyer for your divorce proceeding, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

By: Van Smith

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/business-valuation-and-family-law.cfmwww.smithstrong.com-126206Sat, 30 Mar 2019 06:00:00 EST With the average life expectancy rising so are the ages at which people are getting remarried. These marriages later in life, known as “gray marriages,” can lead to legal complications, especially when one or both of the people getting married have adult children. This article will provide important steps to take to avoid conflicts caused by marriages involving those over 55.

Plan for the Worst

Thinking about your marriage possibly ending is uncomfortable for any couple, but it is important to plan, even more so for those entering into a gray marriage. Most of the time those over 55 have their lives in order and introducing someone new into the intimate parts of their lives can cause huge disruptions. Therefore, someone entering into a gray marriage must plan for the worst to make sure his or her future is secure.

Prenuptial Agreements

A prenuptial agreement will not only protect retirement savings in the event of a divorce, but also ease any children’s minds about the possibility of “gold digging” or loss of inheritance. Nipping this huge potential problem in the bud is a great step toward a stress-free marriage.

Keeping Assets Separate

Those entering a marriage after 55 should also consider keeping separate bank accounts. Separate bank accounts will ensure spending is controlled from both sides. This is even more important than when people are younger because those 55 and over are close to retirement age and will be counting on their savings. A prenuptial agreement would also be nearly worthless if one of the spouses spent all of the other spouse’s money during the marriage.

Separate Legal Counsel

Keeping separate legal counsel will ensure everyone’s best interests are retained. There may be tough decisions down the line like putting one of the spouses in a nursing home, or when one spouse wants to apply for Medicaid and the other doesn’t. If only one lawyer is retained there may be a conflict of interest.

Impacts of Marriage Not Realized Until Later in Life

Many couples are surprised to find out that Medicaid in Virginia does not recognize prenuptial agreements, which means that if one spouse enters a nursing home then all the assets of the couple are considered on the Medicaid application, which can impact eligibility. Other government benefits, employment benefits, and pension plans can also be affected by a marriage.

Who Should Be Your Fiduciary

Often times adult children will have bias towards their biological parent as well as themselves over a step-parent, so assigning adult children as fiduciaries (power of attorney or executor) can set up the step-parent to be left in the cold. Best practice suggests that those making estate plans, especially those in a second marriage, assign professionals to serve as their fiduciaries, that way bias should be taken out of the equation.

Trusts Over Wills

Another great idea when entering into a second marriage is to set up trusts for any children the spouses bring to the marriage, that way when one of the spouses dies first there will be no chance for the surviving spouse to disinherit his or her step-children.

Gray Marriage Does Not Have to Cause Issues

When a marriage is new it is so easy to think nothing will go wrong, but it is important to plan for the worst and hope for the best. The attorneys at Smith Strong will be able to create a comprehensive plan for your future that provides for your specific family’s needs. If you are in need of a lawyer for your estate planning, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/getting-married-later-in-life-and-handling-finances.cfmwww.smithstrong.com-126203Fri, 29 Mar 2019 10:37:00 ESTThe case of Parham v. Parham provides an example of the principals governing imputation of income in spousal or child support purposes.

Background

After Mr. and Ms. Parham’s divorce, Mr. Parham was ordered to pay $12,000 per month in spousal support and $1,477 per month in child support. These numbers were based on an annual salary of $344,786 per year. However, about a month after the spousal and child support order, Mr. Parham was told his company was “moving in another direction” and subsequently fired from his job. Mr. Parham then found a new job, but it paid $162,000 per year, making the spousal and child support payments much more burdensome. Mr. Parham looked to the court to modify his support obligations citing his new salary and Ms. Parham’s increased salary. Ms. Parham fought the potential change of support, citing that Mr. Parham was voluntarily underemployed. She claimed that Mr. Parham was voluntarily underemployed because he was fired for cause at his previous job because of his failure to remediate his work performance even after being warned. The circuit court agreed with Ms. Parham and found that Mr. Parham had not presented enough evidence to prove he was not fired for cause. The court then imputed the income he had at his previous job, meaning they treated him as if he still had the same income as at the time of the first support action. Despite that, the spousal support obligation was lowered to $9000 per month due to Ms. Parham’s increase in salary, but Mr. Parham’s child support obligation was raised to $1,651per month.

Court of Appeals Decision

Mr. Parham appealed, first claiming that the circuit court was under the impression that it had to impute his previous income because he was fired for cause, which would have been incorrect for the court. He cited Murphy v. Murphy which created the rule in Virginia that imputation of income to a voluntarily underemployed person is at the discretion of the court. The court of appeals found that the circuit court did not automatically impute Mr. Parham’s old income because: (1) the circuit court expressly acknowledged that it had discretion and (2) the circuit court modified the support obligation. Mr. Parham also argued that there was not enough evidence to establish his voluntarily underemployment or the imputation of his old income because he was not at fault for losing his old job and his new employment decision was reasonable and made in good faith. The court of appeals said the circuit courts findings of fact were not clearly erroneous and imputation was proper.

Help with Your Support Case

As Parham v. Parham illustrates, support arrangements can be life changing if you are left with a payment you can barely afford, therefore, a favorable outcome is extremely important. Hiring a great lawyer is the first step on the path to success in any suit and the lawyers at Smith Strong handle support cases on a regular basis and will use their knowledge and skills to advocate fiercely on your behalf. If you are in need of a lawyer for your support case, or if you have any other family law or estate related needs, or would like to attend one of our free seminars, please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/alimony-and-imputation-of-income.cfmwww.smithstrong.com-126200Thu, 28 Mar 2019 10:22:00 EST This article will detail some of the most important issues regarding child custody in Virginia. The Virginia Code § 20-124 provides much of the Commonwealth’s custody law. If a specific topic is of particular interest to you, be sure to further peruse our website for other articles concerning the topic.

Determining Custody

In large part the custody of a child is determined by the child’s best interest. The judge will consider the following factors, which are outlined in the Code of Virginia § 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;2. The age and physical and mental condition of each parent;3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;5. The role that each parent has played and will play in the future, in the upbringing and care of the child;6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;8.. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and10. Such other factors as the court deems necessary and proper to the determination.

Legal v. Physical Custody

The Code of Virginia § 20-124.1 defines both legal and physical custody. Legal custody is the authority to make decisions relating to the care and control of the child. Decisions a parent with legal custody could resolve are, for example, education and medical care. Physical custody is physical and custodial care of the child. This basically means that the child lives with the parent who has physical custody.

Joint v. Sole Custody

Joint custody refers to either legal or physical custody that is shared between parents. Sole custody means that one parent controls all of legal or physical custody or both. The mix of joint v. sole custody will be determined on a case by case basis. Married parents are presumed to have equal rights to their children. However, when a mother is unmarried it is presumed that she has sole custody over her children. For a father to rebut this presumption he must file suit.

Non-Custodial Parents

The circumstances under which non-custodial parents may see their children take many different forms. This is due to the fact specific nature of each case. These arrangements will generally include a mix of specific weekdays, weekends, and holidays. The court could also decide that visitation needs to be supervised when it believes a parent could harm or has harmed the child. Supervised visitation must be in public or in the presence of an approved third-party. Generally, the court, when giving visitation at all, will only make the visitation supervised in extreme cases.

Will Your Child Need to Testify

Depending on the situation your child may need to testify. In cases where the parties can come to an agreement without court intervention, a child will not have to testify. However, in more contentious cases there are situations where the child should testify. Some circumstances require a child to testify because his insight may be integral to understanding the familial dynamic. The child’s preference on where to live may also be important depending on the child’s capacity and maturity. If testimony is needed it may be done in court or in private with the judge, known as an in-camera interview. An attorney will be able to look at the specifics of your case and give you a determination on the likelihood your child’s testimony will be needed.

Who May Seek Custody or Visitation

According to the Code of Virginia § 20-124.2, the court shall give due regard to the primacy of the parent-child relationship but may award custody to any other person with a legitimate interest in the child. Someone may show a legitimate interest in the child through a showing by clear and convincing evidence that the best interest of the child would be served by awarding custody or visitation to the non-parent.

Temporary Orders

Starting with separation and ending with the court orders, finalizing a divorce takes time. Therefore, pendente lite, aka temporary, orders conferring provisional support are needed. For example, these orders may award spousal support, child support, use of the marital home, custody and visitation on a temporary basis.

When a Parent Tries to Move with the Child

If the other parent is attempting to move out of state with a child before a divorce is filed it is often suggested that you file for divorce immediately with the help of an attorney. This move will ensure Virginia has jurisdiction over the case. The Parental Kidnapping Prevention Act (“PKPA”) could also come into play in this situation. PKPA is a federal law that determines which state has jurisdiction in your child custody matter.

If the attempted move comes after a custody order has been handed down and the parents cannot come to an agreement then the decision will go to the court. The judge will once again look to the best interest of the child.

Can the Child’s Last Name be Changed Without Permission

If parents do not agree on a name change then the decision will go to the court. The judge will decide what is in the best interest of the child.

Increasing Your Chances at Getting a Favorable Custody Agreement

The very first thing you must do to receive a favorable custody agreement is the most obvious, be a great parent. Once you do that you must consult with an attorney who will advocate on your behalf. With your parenting and a great attorney, the chances of a favorable outcome will be increased. Smith Strong can provide you an effective attorney that will be with you throughout the entire process answering questions and working his or her hardest to get the best result for you. Attorney Van Smith has also written a free book entitled Divorce and Custody in Virginia which can get you started on your journey. Access to this book can be found on our website under the “Info” tab. When you decide it is time to consult with an attorney, Smith Strong is available at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/guide-to-virginia-child-custody-laws.cfmwww.smithstrong.com-126170Wed, 27 Mar 2019 11:45:00 ESTWhen settling the value of a marital estate, a family-owned business becomes part of the calculations. The article below addresses how value can be assigned to a business.

Part of the Marital Estate

If you and your spouse own a business together, it is unlikely that you will sell that business as part of the process of dividing your combined assets. You and your attorney must therefore reach a figure at which the business may be valued in order for it to be properly considered in the marital estate.

The Process

Depending upon the level of experience in such matters that is possessed by the couple, the value of the business is set in much the same manner as it is for most other forms of property. The couple can research comparable businesses through the appropriate publications or over the Internet in order to form an estimate on which they and their attorney can base a reasonable consensus. Failing this, there are experts in this field whose services can be engaged should the need arise.

Under the usual circumstances, however, divorcing spouses do not have a very comprehensive understanding of what must be taken into consideration during the valuation of their business. In order to avoid possible errors or inaccuracies by consulting sources that may or may not be reliable, the assistance of an accredited business valuator is advisable. This person’s resources and experience are such that guesswork can be avoided and inaccuracies minimized.

Book Value

This is defined as the difference between the purchase price of an asset and its depreciation over time and is the basis for business financial statements.

There can be a vast difference between the book value of an asset and its value on the market. A plot of land purchased by a business 30 years ago for $9,000 may have a fair market value of 20 times that figure now. Your lawyer may refer to legal statutes to determine which of these applies in a divorce proceeding, or it may be decided upon by the court. Either way, it is important that all parties understand and consider the disparity that exists between these two standards.

There are basically two ways of approaching a business evaluation for divorce proceedings. In some jurisdictions, a company’s value is based on its worth to the owner (known as fair value); in others, its value is determined by what an individual other than the owner believes it is worth (known as fair market value). Great discrepancies may exist between these two different standards.

When discussing fair value, the concept is greatly dependent on business conditions and may by quite subjective. For instance, the standards used to determine fair value in stockholder disputes may not be the same ones applied during divorce, and the standards used in divorce may be different from state to state as well as different within the state as counties and even judges differ in their interpretation. Although various definitions of fair market value exist, usually it is regarded as the amount a willing buyer will pay to a willing seller for his or her business. Problems also arise when judges and some experts incorrectly use the term fair market value for fair value.

Taking action in the following ways will help parties reach agreement:

• Allowing both parties to review the company records and books• Referring to a professional for adjustment• Allowing both parties to determine the company income

Reliability of Business Financial Statements

Whether or not a lawyer considers a business financial report reliable has a great deal to do with who generated the report and whether the preparer is independent or not. These reports may be created by a certified public accountant who works under contract or by an accounting specialist or bookkeeper who works for the company directly.

Least Reliable

A business financial statement internally created by an employee of the business probably holds the least credibility. The qualifications of the person generating the report may have some deficiency, or in some cases, the report may be slanted toward the best interests of the business.

Preferable

A statement assembled and presented by a certified public accountant (CPA) is typically viewed as more reliable that one prepared by an internal employee of the business. The CPA will watch for inconsistencies or questionable entries or transactions but is not required to make any other assessment of the data provided.

More Preferable

Next in line in order of credibility are business financial statements that have been examined (reviewed statements) by the CPA for consistency, soundness and reliability. The best of all of these is a reviewed statement in which the transactions that comprise it have also been examined.

The Bottom Line

Regardless of who prepared the financial statements for the business or how they were generated, they are still based on the book value. Because of the disparity between book value and fair market as a tool for marital estate valuation in a divorce, the business financial statement may not be the best choice.

Small Businesses As Employers

In most small business situations, the operators pay themselves approximately what someone else might pay them for a comparable position. They not only own the business, they work there. However, unlike the employee who is simply paid for the day’s work, the business owner both reaps the profit and pays the debts that are associated with the operation. In order for the business to exceed the minimum value, therefore, the business owner’s pay must be somewhat higher than a similar position in the job market.

]]>https://www.smithstrong.com/library/family-attorney-in-richmond-valuing-a-business-in-a-divorce.cfmwww.smithstrong.com-90829Tue, 26 Mar 2019 11:19:00 ESTThis article broaches a few of the most important issues concerning child support in Virginia. The laws regarding this topic are primarily contained in the Code of Virginia §§ 20-107.2, 20-108.1, and 20-108.2. If a specific topic is of particular interest to you, be sure to further examine our website for other articles concerning the topic.

Child Support Process

The below list shows, in order, the stages of the child support process.

1. Hire an attorney.

2. File a complaint. You can start the process by filing a complaint for divorce in your Circuit Court or a Petition for Child Support in your Juvenile and Domestic Relations (“JDR”) Court.

3. Prepare. Your attorney will meet with you to update you on the case and seek input. At Smith Strong, we meet with you at least twice.

4. Have a child support hearing. At the hearing, the court will review paperwork, hear arguments, and listen to testimony.

5. Decision. If you are in the JDR court, you will typically leave with a decision that day. In Circuit Court, the judge will make a decision, get one of the parties to draft the order, and then sign the order at a later date.

Child Support Determination

Child support is generally determined through a computer program termed VADER, which takes into consideration things like both parents’ incomes, the number of children, number of days a parent has with a child, etc. and comes out with a guideline. Once a guideline is determined, it is presumptively correct and as a result there must be a proper legal reason to deviate from it, whether that be up or down. When contemplating deviating from the guideline, a judge may consider factors like support from family members, standard of living established previously, tax consequences to the parties, etc. The court must then give its reasons from deviating from the guideline if it decides to. Smith Strong’s website provides a “Child Support Calculator” under the “Info” tab that can give you an estimation of what a judge would award in your case.

Gross Income Deductions

Gross income deductions lower your child support obligation. One example is spousal support payments--these will be deducted from your income and added to your ex’s income. Child support payments to a different child will also be deducted from your income.

Retroactivity

Often times child support orders not only require payment each month going forward, but also require that the first support payment be larger to compensate the receiver of support back to a previous date. This date will likely be based on the date of filing for the petition or complaint.

Medical Costs and Child Support

Virginia child support calculations include the cost of health insurance for children. However, the calculations do not include unreimbursed medical expenses, which are things like co-pays and deductibles. If the annual unreimbursed medical costs are $250 or under the custodial parent is expected to take care of it, but if the costs raise above $250 then they will be split on an income pro-rata basis. Income pro-rata means that if you make twice as much as your ex, then you will pay double the unreimbursed medical costs.

One common conversation over unreimbursed medical expenses is braces and whether they are covered. There is no specific answer to this question because each determination will be fact specific based on things like a dentist’s recommendation or the necessity of the braces. The person disputing the braces would have the burden of proof because unreimbursed medical expenses are presumed reasonable.

Potential Child Support Add-Ons

There are many expenses that come with raising a child and generally it will be up to the discretion of the court whether non-necessary expenses are added onto child support. Some of the most common add-ons are the decision between public and private school, extracurricular activities, and travel expenses.

Appeals

You can appeal if the judge made a legal mistake or failed to consider important facts. If your case was originally in JDR you can appeal to the Circuit Court. This is a smooth process since it is so common. If your case was originally in Circuit Court then the appeal process is more difficult, as you will be appealing to the Virginia Court of Appeals.

Can Support be Modified

Only a material change of circumstances after a child support order is entered can prompt a judge to consider modifying that order. The change in child support must also be in the best interest of the child. Virginia law lays out a non-exhaustive list of 9 factors that are considered to affect the child’s best interest. Some examples of those factors are physical and mental condition of both the child and the parents, the needs of the child, and the role the parent plays in the upbringing of the child.

New Spouse Income Effect on Support

A third-party’s income does not directly affect the support agreement, but it is considered a deviating factor when determining a parent’s ability to meet his, her, or the child’s living expenses. A new spouse’s income is also important when the parent no longer works due to the income.

Visitation and Child Support

Visitation of children and support of those children are two separate legal matters. Therefore, missed child support payments do not automatically constitute grounds for a parent receiving child support to keep the other parent from seeing his or her children for missed payments. On the other side of the coin, a parent who receives child support, but decides to refuse visitation to a parent paying child support, does then give the paying parent reason to stop following through on his or her obligation. Under these circumstances the victimized parent should notify the court so that it can address the issue.

Missed Payments

Missed child support payments can happen for a variety of reasons, but they cannot be waived, except in specific circumstances. A child’s right to be supported trumps the right of either parent’s waiver rights. A parent failing to provide support payments will be subject to discipline from the court, which can result in going to jail. Missed payments also accrue interest at 6% per year. This is a statutory standard.

When Court Ordered Child Support Ends

When a child turns 18 mandated child support payments stop, unless the child is a full-time high school student, not self-supporting, and living in the home of the party seeking or receiving child support. When a child turns 19 or graduates from high school, whichever occurs first, child support payments can stop, regardless of the previously mentioned exceptions.

Increasing Your Chances at Getting a Favorable Support Agreement

Even though child support is determined by a program, it is in your best interest to consult with an attorney regarding your case. In the end, the judge has the discretion on whether or not to follow the child support guideline and retaining an attorney will be your best chance at swaying the judge’s decision in your favor. Smith Strong can provide you an effective attorney that will be with you throughout the entire process by meeting with you, answering questions, and working his or her hardest to get the best result for you. Attorney Van Smith has also written a free book entitled Divorce and Custody in Virginia which can get your started on your journey. Access to this book can be found on our website under the “Info” tab. When you decide it is time to consult with an attorney Smith Strong is available at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/guide-to-virginia-child-support.cfmwww.smithstrong.com-126167Tue, 26 Mar 2019 06:00:00 EST When it comes time for elderly adults to move from their homes into assisted living communities or nursing homes the task can seem daunting. There are many options for living facilities and the costs of each varies greatly. Elderly people will need to determine the extent of the care they need, along with what their finances will allow.

Cost

The cost of living in senior housing is generally more expensive than traditional housing. According to the National Investment Center for Seniors Housing & Care the average monthly rent for seniors who want support such as meals, light housekeeping, and transportation is $3,304. The average monthly rent for assisted living with a greater level of care, including things like dressing, bathing and medication, is $4,947. Nursing home care in the Richmond area is even higher than the national average with the per month cost coming in at $6,420.

How to Pay

Typically, the biggest asset people have is their home. Therefore, when it is time to move to an assisted care facility, the selling of a home will cover the initial chunk of the expenses. Personal retirement savings can also cover expenses for this sort of housing. Long-term-care insurance is another way to pay for assisted living for those who need more extensive care. It will kick in when a policyholder needs assistance with two or more daily activities, such as bathing or feeding. The average cost of one of these policies is $2,600 a year. However, rates vary depending on age and health.

Government Programs to Help Cover Expenses

Medicaid has traditionally covered nursing home expenses. On top of that, Virginia has enacted a limited waiver program that allows residents of assisted-living facilities to qualify for benefits as well. To be eligible for Medicaid an elderly person’s assets will have to below certain levels. The Department of Veterans Affairs also offers programs that can help pay for assisted living, if found to be eligible.

Planning

Determining what sort of assisted-living facility an elderly person can choose starts with determining total assets. Once this is done you can develop a plan on how and when to spend those assets. Consulting a professional during this stage is imperative to make sure you do not miss any opportunities to save money or qualify for benefits. The attorneys at Smith Strong specialize in elder law and often encounter this process. We will make the process easier for you and would love your business. Attorney Van Smith also offers a no-cost estate planning workshop to help get you started with the process. More information on the workshop can be found on our website under the “Info” tab. To schedule your first meeting or attend our estate planning seminar call (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

]]>https://www.smithstrong.com/library/planning-for-long-term-care-costs.cfmwww.smithstrong.com-125917Tue, 05 Mar 2019 06:00:00 EST With each new semester, student debt rises exponentially and so does the confusion and anxiety that comes with paying back the debt once higher education ends and the loans come due. Many students do not have the time or money to even think about paying back their debt while in school, which then leaves them with no plan for their debt once they graduate. Thankfully, lenders typically provide new graduates with a six-month grace period before their loans must be paid on a monthly basis. If they haven’t already, this period gives new graduates time to find a job and establish some savings before the payment requests roll in. During this time, it is essential to get your loans in order.

How Much is Due and When it is Due

The first thing new grads should do is develop an understanding of exactly what the loans entail. This can be done by making a few determinations. First, figure out who exactly the debt is owed to. Some grads will have taken all their loans from one source while others may have multiple sources. If a grad forgets where her loans came from, she can request a copy of her credit report, which lists all outstanding loans. Once this is done, the grad should make a spreadsheet with all of the lenders, their contact information, and their website. That information can then be used to figure out how much is owed overall, what monthly payment that amount translates to, and how long it will take to repay the loans. Having this information all in one place will make the task of repaying student loans seem a little less daunting.

Keep Contact Information Up to Date

Once students graduate, many things change in their lives, including contact information. Physical addresses, email addresses, and phone numbers for college graduates are likely to change as he/she establishes independent living arrangements, often for the first time. Whatever the change may be, contact information must be updated with creditors. If the information is not updated, important communications may be missed that can cause a new graduate to fall behind on his loans. It is also important for anyone with student loans to notify their student loan providers if they are back in school as a full-time or half-time student because payments will often be deferred until graduation.

Don’t Miss Opportunities to Reduce Debt More Quickly

There are many ways new graduates can reduce their final total of loans. Interest rate incentives given when enrolled in an automated payment plan is one opportunity. Another opportunity, if their salary allows, is those with student loans should pay more than the minimum monthly payments. This not only keeps the total amount paid down, it also gets the burden of loans off their backs sooner. Tax returns and bonuses are also great opportunities to make large strides in paying down loans.

Ask for Help If it is Needed

If you are struggling with student loans it can never hurt to ask your loan provider for help. Oftentimes the loan provider will offer a temporary interest-rate reduction or provide information on income-driven repayment plans or loan consolidation.

Don’t Fall for Scams

Bad actors have taken advantage of the student debt problem and created scams to pray on those desperate for help. Federal and state regulators have cracked down on these scams, but sometimes the most determined of these scam artists leak through the cracks. These scams often charge an upfront fee to purportedly lower or forgive someone’s student debt. Those in student debt should also be wary of those who contact them out of the blue offering ways to clear their debt. A great rule of thumb is to never give out sensitive information to unverified third parties. The key thing to remember is, if it seems too good to be true it probably is.